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The idea behind this blog is to collect information on the death penalty in India and make it accessible. We are trying our best to put the latest information on the people who are currently on death row, the status of their cases, their mercy petitions and also the information on any death sentence across the country. Please feel free to write us and give us your suggestions and comments and also any information you have come across regarding the death penalty in India. Our email id is abolishdeathpenaltyindia@gmail.com The blog is currently managed by Grace Pelly, Lara Jesani, Nitu Sanadhya, Rebecca Gonsalvez, Reena Mary George and Vijay Hiremath.
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vijayhiremath@gmail.com
reena.mary.george@univie.ac.at

Friday, February 6, 2015

Hope for death-row convict

Thursday , November 13 , 2014 | OUR LEGAL CORRESPONDENT

New Delhi, Nov. 12: The Supreme Court today decided to examine if the sentence of a death-row convict who killed five persons could be commuted to life after he claimed he was only 18 years and two months old at the time of the November 2004 murders. Sonu Sardar and four others had entered the home of a Chhattisgarh scrap-dealer, snatched Rs 1.75 lakh in cash and killed him, his wife, two small children and their driver. A 10-year-old daughter fled to a neighbour’s house and a three-year-old boy and six-month-old girl escaped unharmed.

The apex court’s decision is bound to raise eyebrows as there has been a clamour — since the December 2012 gang rape of a paramedical student — to try under the adult criminal law minors above 16 who are accused of heinous crimes. All accused aged below 18 are now tried under the Juvenile Justice Act, which provides for a maximum punishment of three years in a reformation home.

A bench of Justices A.R. Dave, J. Chelameshwar and U.U. Lalit said apart from considering Sardar’s claim of being young at the time of the crime, there was need to examine if the fatal blows to the victims were delivered only by him or the others as well. It then asked the state to file its response to this. On November 26, 2004, the five had entered the house of Shamim Akhtar in Cher village in Chhattisgarh’s Baikunthpur district and killed him, wife Ruksana Bibi, son Yakub (8), daughter Kumari Rana (4) and driver Asghar Ali.

Orphaned were three other children: daughter Shabana Khatun, who fled to a neighbour’s house, and Yakut and Asna, who were not harmed. Only Sardar has been convicted of murder as the whereabouts of the three others are not known till date. The fifth offender was tried as a juvenile and freed after a 3-year reformation period. In 2008, the sessions court at Bilaspur sentenced Sardar to death. In 2010, Chhattisgarh High Court confirmed the order.

Sardar then moved the top court, which dismissed his appeal in February 2012. The President rejected his mercy plea in May this year. During the review petition hearing today, senior counsel Raju Ramachandran said Sardar was only a little over 18 at the time of the murders. Moreover, his conviction was based on circumstantial evidence and the testimony of a 10-year-old child witness, so his sentence should be commuted to a life term. However, the state’s counsel, Atul Jha, opposed any leniency, saying the murders were committed in the most brutal manner and three children had been orphaned by the attack.

Jha said the trial court had rightly relied on the following factors for awarding death penalty:

The crime was pre-meditated;

The crime has struck fear and terror in the public mind;

The victims were helpless and defenceless, including two minors;

Even Asgar Ali, the driver who had dropped by for his food, was not spared;

Sardar took advantage of earlier business relations with Shamim, made a friendly entry and committed the murders;

The intention was to kill all members of the family, although surprisingly a six-month-old baby and a three-year-old child remained alive;

The five murders were brutal, grotesque, diabolical, revolting and dastardly, which indicated the criminality of the perpetrators of the crime;

No physical or financial harm appears to have been caused by the deceased to the accused.

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The Death Penalty Scenario in India

The Indian government is committed to the retention of the death penalty. In December 2007 India was among the minority of countries who voted at the United Nations General Assembly against a moratorium on executions.

India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. It is mandatory for second convictions for drug trafficking offences.

Death sentences are carried out by hanging. In 1983 the Supreme Court upheld the constitutionality of this method, stating that it: “involves no barbarity, torture or degradation.”

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement.

Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

There is very little information on the number of people sentenced to death in India. According to the National Crime Records Bureau, 1,455 convicts were awarded the death penalty during the period 2001-2011. The actual figure of sentences originally awarded is much higher considering the death sentences of 4,321 convicts came to be commuted to life imprisonment in the said period.

That the imposition of death penalty is ineffective in controlling crime rate or deterring crimes, is widely known and even accepted on the basis of exhaustive research and statistics. Inherently there are serious flaws in capital sentencing. DNA evidence is not used, death sentences can be given by a majority rather than a unanimous bench and many convictions for death sentences are based entirely on circumstantial evidence. This coupled with a faulty criminal law enforcement system and admittedly high corruption levels in the police force investigating the crime, increases the chances of false convictions. In such a scenario, the correctness of conviction resulting in the ultimate sentence of capital punishment relies on a system of trial and error.

Also, the handing over of the death penalty is dependent on various variable factors such as existing biases amongst law enforcers, social biases, media reports and public outcry, social and financial status of the accused, quality of legal representation and last but not the least, the bent of mind of the judges.

During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. It has enabled judges to justify imposing sentences of death in an arbitrary manner, reinforcing the deeply flawed character of capital punishment in India today.

Recently in April 2013, in a petition filed by Devender Pal Singh Bhullar in the Supreme Court, delay in deciding his clemency plea was ruled out as a ground to commute his death sentence to life imprisonment. Devender Pal Singh Bhullar had approached the Supreme Court in 2011 after the President rejected his mercy petition after 8 years. The said judgment may have a far reaching effect on similar cases where mercy petitions have remained pending with the President for inordinate periods of time.